In The Matter Of The Application For Revocation Of Options. The Provisions Of § 17 Of The Act 2/1991.

Original Language Title: ve věci návrhu na zrušení někt. ustanovení § 17 zákona 2/1991 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=64068&nr=16~2F2007~20Sb.&ft=txt

16/2007 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 5 July 2004. October 2006 in plenary in the composition of Stanislav

Package, Francis Skinner, Turgut Güttler, Pavel Holländer, Ivana Janů,

Vladimir Crust, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel

Rychetský (Judge-Rapporteur), Miloslav Výborný, Elisabeth Wagner, and

Michael April about the design of a group of 42 members of the Chamber of Deputies

Parliament of the Czech Republic, which represents Member Prof. JUDr. Zdeněk

Jičínský, DrSc., on the repeal of the provisions of § 17 para. 1, part of a sentence that

added "if it agrees at least half the employees concerned has

This agreement concern. "§ 17 para. 2 part of the sentence which reads "If

It agrees at least half of the employees covered by the collective

agreement a greater degree of concern. "§ 17 para. 4 (b). (c)) and § 17 para. 5

Act No. 2/1991 Coll., on collective bargaining, as amended

regulations,



as follows:



The proposal is rejected.



Justification



(I).



Recap of the proposal



1. the examination of the Proposal pursuant to § 64 para. 1 (b). b) Act No. 182/1993 Coll.

on the Constitutional Court, a group of 42 members of the Chamber of deputies of the Parliament

The Czech Republic (hereinafter "the applicant") seeking the release of the award, which

should the Constitutional Court to annul the provisions of § 17 para. 1 part of the sentence which reads ",

If it agrees at least half of the employees covered by this

collective agreement to cover. " ("if it agrees at least

half of the employees covered by this agreement has a concern. "), § 17 para. 2

part of the sentence which reads "if it agrees at least half

employees covered by this collective agreement to cover. " (correctly ",

If it agrees at least half the employees concerned has

the collective agreement a greater degree of concern. "), § 17 para. 4 (b). (c)) and §

Article 17(1). 5 of the Act No. 2/1991 Coll., on collective bargaining, as amended by

amended.



2. the applicant stated that under the contested provisions of the law on

collective bargaining is the announcement of a strike in a dispute concerning the conclusion of

collective agreements can only be made in this case, if you agree with it

at least half of the employees covered by the collective agreement apply to you.

The trade authority is obliged to notify in writing the

employers at least three working days in advance of the names of a list of shortcuts

the competent Trade Union body, who are authorized to represent

the participants of the strike, and at least one working day before the start of the strike

list of the names of employees who are participants in the strikes.



3. The contested provisions of the law on collective bargaining are

the applicant in breach of article 88(3). 1 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution"), under which the Czech Republic is a sovereign, unified and

the democratic rule of law based on respect for the rights and freedoms of man,

article. 10 of the Constitution, under which ratified and proclaimed International

the Treaty on human rights and fundamental freedoms binding on the Czech

Republic immediately binding and take precedence over the law

(the appellant incorrectly quoted the wording of article 10 of the Constitution before the amendment

performed by Constitutional Act No. 395/2001 Coll.), art. 8 of the International Covenant

on economic, social and cultural rights (proclaimed under the No.

120/1976 Coll.), which guarantees the right to strike, the International Convention

Labour Organisation (ILO) No. 87 on freedom of Association and protection of the

the law of the right to organise (published under no. 489/1990 Coll.), Convention

ILO 98 on the implementation of the principles of the right to organise and collective

negotiate (published under no. 470/1990 Coll.), which are also part of the

the legal order of the Czech Republic. According to the appellant, although these conventions

explicitly mention the right to strike, but this right stems from the freedom of

pooling. The contested provisions of the law on collective bargaining are

appellant further in breach of article. 27 para. 4 of the Charter of fundamental

rights and freedoms ("the Charter") and article. 4 of the Charter.



4. The contradiction of the contested provisions of the law on collective bargaining with

the cited constitutional acts and international treaties of the sees

the appellant in that the conditions laid down for the announcement of the strike are in

its consequences serious limitations of the right to strike as a major

tools of the defence of economic and social interests of employees.

"The requirements of the affected provisions of the Act are important

obstacles preventing employees in their proper exercise of the right to

the strike. In practice, these conditions lead to intimidation, discrimination

and even the dismissal of workers. They therefore prefer their right to

the strike, fearing before giving up the possible consequences, and are thus deprived of their

their constitutional order of the Czech Republic guaranteed rights. "



5. The contested legislation is based on the applicant in breach of and is

the opinions of the International Labour Office ("MÚP"). According to the

decision-making practice of the institutions MÚP, the Committee on freedom of Association and the Committee of the

experts is a requirement of the decision of the "supermajority" (sic!) of all

workers, which is the announcement of the strike concerned, disproportionate and could

unreasonably impede the execution of the strike options, especially in large

enterprises. The requirement of an absolute majority of the workers to strike

can cause problems, especially in the case of trade unions, which bring together

a large number of members. The requirement to obtain an absolute majority may therefore

involve the risk of serious limitations on the right to strike [the applicant to refer to the

"Freedom of association-Digest of decisions and principles of the

Freedom of Association Committee of the Governing Body of the ILO, fourth

(revised) edition, 1996, articles 507 and 508].



6. the appellant pointed to the experience of the Slovak Republic, which had

similar legislation until the amendment made by Act No. 209/2001

Of the reason for this amendment has been a complaint made to the MÚP Trade

združením železničiarov against the Government of the Slovak Republic. The provisions of the

the law was changed so that the strike may be declared if it

agree to an absolute majority of all employees of the employer

participating in the vote on the strike, which has a collective agreement

cover, provided that the vote at least an absolute

most of the employees calculated from all the employees, and that the competent

trade authority shall notify the employer at least three working days before the

the start of the strike the appropriate trade union list of the names of the representatives of the authority,

who are authorized to represent the participants of the strike. This new legal

adjustment of the Committee on freedom of Association reportedly reacted in a way that the provisions

According to which the strike must be approved by an absolute majority

workers participating in the vote on the strike, is in conformity with the principles of

the freedom of Association. The Committee acknowledged that the new legislation forms

submitted name lists is an improvement compared to the previous

the wording, however, considers that its practical application could lead

discrimination and reprisals against workers ' representatives who are

included in the list. The Committee noted that the activities of the protection against

trade union discrimination, it is desirable, in particular, in the case of Trade Union

to them to carry out their trade union

duties in full independence.



7. For these reasons, therefore, the appellant sought the release of the findings, as

mentioned above.



II.



The progress of the proceedings and the expression of the parties ' recap



8. the Constitutional Court challenge filed pursuant to § 69 law on the Constitutional Court

by the mouth of his Chairman Lubomir Zaorálek, PhD. observations

The Chamber of deputies of the Parliament of the Czech Republic. She admitted that in our

the legal order is adjusted only strike in the area of collective

negotiations (collective bargaining Act) and not strike other

of the species. In the absence of the conclusion of a collective agreement, even after the procedure before the

by the provider and the Contracting Parties request an arbitrator to resolve the dispute,

as a last resource, may be in a dispute concerning the conclusion of a collective agreement

declared a strike. For the Elimination of the so-called. Wild strikes is the base

as a condition of publication of the relevant trade union authority strikes the fact that

It agrees at least half of the employees covered by the collective

the contract apply to you. By establishing this requirement, it is stressed that the strike is

considered to be an extreme remedy. It is not desirable for such a serious step

only trade authority, without consent of the majority had to it

membership of trade unions.



9. According to the Chamber of deputies would rest in the negotiations in a dispute about

the conclusion of a collective agreement and did not contribute to quickly end if

all employees of the employer and the striking acted together. Therefore,

It is provided that the competent authority shall submit to the employer a trade

list of the names of the representatives of the trade authority, who shall be entitled to

represent the participants of the strike. A smaller number of vyjednávajících more easily

will come to an agreement.



10. Every employee has the right to freely decide whether to strike

joins or not. Such a decision has its consequences in terms of its

labour law and social rights. The employer should know


that number of people, and what the structure will be obsazovány in the work shift

the time of the strike. Employees who are not involved in the strike, the employer

allow performance of the work, and if as a result of the strike of the employees

cannot do the work, or held another job, their wage claims

governed by the provisions on wages in the performance of other work, or for a refund

wages when the obstacle of work on the part of the employer. Name lists

the participants therefore strikes are used to distinguish who is and who is not

a participant in a strike. – Participation in a strike is considered as

omluvená absences from work, for which, however, it is not for payment nor

wage compensation and sick-leave benefits for the period of the strike does not belong and support

family member care benefit, if the conditions for granting these benefits

meet at the time of participation in the strike.



11. The Chamber of Deputies stated that the law on collective

the negotiation was received after the completion of the legislative process, properly was

signed by the respective constitutional officials, and declared in the collection of laws.

According to her, the legislature acted in the belief that the law is adopted in

accordance with the Constitution, the constitutional order and laws of the United States.



12. The Senate of the Parliament of the United Kingdom through the mouth of its President MUDr. Přemysl

Sobotka to point out in its observations that the provisions in question design

the law on collective bargaining was approved at a time when the Senate yet

has not been established.



13. In substance, the draft noted that the Charter and the relevant international

the Treaty, which is expressly regulated the right to strike, are calculated with

more by editing this right by means of the law, with any restrictive

legislation must conform to defined criteria. From this point of view,

as regards the number of employees required quorum to decide on strike,

It may be a matter of assessment of the number of employees should be considered

appropriate to make decisions about it. It is quite obvious that the strike

can have serious economic consequences not only for the employer, but in

their implications for employees, including those who do not want to strike,

and depending on the nature of the employer's activities may have, directly or

vicariously also consequences for other employers or for other

citizens. The Senate pointed out the progress of the discussions on collective

bargaining in the Federal Assembly, which implies that the

the quorum have agreed on tripartite negotiations, representatives of the

employers and trade unions, and the Government party to this agreement

they did not interfere.



14. with regard to the obligation to notify the authority of the Trade Union

employers at least three working days in advance of the names of a list of shortcuts

the competent Trade Union body, who are authorized to represent

the participants of the strike, said the Senate, that the protection against any discriminatory

the conduct of the employer, on the risk of the applicant points out, the

hardly was in some kind of "concealment" of the Trade Union officials, but in the

the positive legislation, which would protect them against a possible

discrimination or criminal penalties. Such a rule is laid down in

the labour code, in particular in section 1 (1). 4 to 8 and § 7 (2). 2 to 6, and in

this sense also the activities of the Trade Union officials is subject to judicial

the protection.



15. Similarly, the parties to the obligation to submit a list of strikers,

You can point out to the labour code, from which it is clear that any

intimidation, discrimination and even the dismissal of the staff would be in the

violation of the law and the employee exercised the right to strike should

subject to judicial protection. It is quite obvious that, if the employer

list of participants of the strike in this way has not received, he would have to get it myself

ensure for example. for the purposes of assessing the wage claims of employees

participating in the strike or for the assessment of claims of such staff from the

health and social security (articles 22 to 24 of the Act on collective

negotiation).



16. The Chamber concluded that the contested provisions do not restrict the right to

to strike in a dispute concerning the conclusion of a collective agreement beyond the principles

laid down in article 4(1). 4 of the Charter and in the relevant provisions of international

of the treaties. The conditions laid down above reasons can be regarded as a

reasonable.



III.



Recap of the observations of other bodies according to section 49 of the Act on the constitutional

Court



17. According to § 49 paragraph 1. 1 of the law on the Constitutional Court addressed the Constitutional Court and the

participants in the so-called. the tripartite, i.e.. institutionalized social

dialogue between the Government, trade unions and employers, and provided them the opportunity,

to make a proposal for a comment.



18. The Czech-Moravian Confederation of trade unions in its observations dated

January 20, 2005 through the mouth of its President Milan Štěcha design group of MPs

welcomed and expressed its full support for him. According to her, the legislation

contained in the Act on collective bargaining a mere formal guarantee

the right to strike. Legal duty to present to the employer list

employees who are participating in the strike, leading in practice to the fact that

employees for any participation in a strike threatened penalty of

by an employer, in particular, followed by release, or are

various forms of harassed. Leads to situations in which

Although the employees intention to strike, but at the moment, when it finds that the

will be included in a list that will be submitted to the employer,

give up this right of reasonable fear for a possible penalty. Trade Union

the Organization will not get to support the strike by an absolute

a majority of employees to lose their ability to effectively defend the interests of the

employees against the employer. Further identification of the striking

the staff and the determination of the quorum for the publication of too-high strike leads

to restrict freedom of trade unions to organize and the right to strike. According to the

The Czech-Moravian trade union organisations are the contested provisions

the law on collective bargaining in violation of ratified and

promulgated international treaties, with art. 27 of the Charter and with the established

the decision-making practice of the International Labour Organisation.



19. The Union of industry and transport of the Czech Republic to respond to the options

the proposal did not use or shipment with a challenge to the Constitutional Court would not assume.



20. The Confederation of employers and business associations United

States in its statement of 31 January. January 2005 stated that with the proposal

a group of MPs do not agree. It is unthinkable to strike

as a last resource in a dispute concerning the conclusion of a collective agreement

took place, if its holding will not agree to at least half

employees. There is no denying the right of the majority, which is the basic principle of

democracy. The submission of the list of employees, it is also necessary

resource, since otherwise there is no other evidence of the fact who is

a participant in the strike and who just interrupt work exploits. The employer

must know who and who not to strike, even in relation to other

obligations incumbent on it under the labour law and other

Regulations (e.g. determining breaks in work, health and safety

at work, absence for other obstacles in the work of the

employees, etc.). The presumption of the plaintiff, that employers

abuse their position in relation to the participants of the strike, according to the Confederation of

employers and business associations of the Czech Republic

unfounded. Cancellation of the contested provisions would be fundamentally

balance in the relationship of employer and employee in these, for

both sides of the complex situations.



21. the Government of the United States under the chairmanship of JUDr. Stanislav Gross

by its resolution No. 140 on 2 December. February 2005, adopted a statement to the proposal

a group of MPs. At the outset, the Government stated that the law on collective

He was admitted at the time of negotiation before the adoption of the Charter.



22. On the question of the quorum for the announcement of the strike, the Government stated that the strike is

a serious enough offence, it is necessary to avoid that it could declare

only a relatively small number of radical workers, and most of that would have

for example, the preferred further negotiations would have to

subject to the minority. The strike is the last possible means of promoting the

the requirements of employees, may have economic effects and adverse effects

(I) for employees, so the condition of the consent of at least half

employees covered by the collective agreement, has been in formulating

the contested provisions considered reasonable. For completeness, the Government

the Commission noted that in the proposal cited articles no 507 and 508 of the selection

the decision and the principles of the freedom of Association Committee of the Governing Board

The International Labour Office to request the express permission of

"supermajority" employees, respectively. "absolute majority"

employees, while in § 17 paragraph 2. 1 and 2 of the Act on collective

negotiation of consent "is required at least half of the employees covered by the

the agreement is to relate to, "with employees, covered by the ban on strikes,

the total number of employees counted and vote on strike

do not participate in. It follows that the condition in the affected

the provisions includes less employees than by an absolute majority or

an absolute majority of the employees.




23. With regard to the list of the names of the representatives of the competent Trade Union body,

was based on the findings, according to the Government, that is established by the so-called. strike

the Committee, which is in charge of negotiations for the striking employees. Even after the

the announcement of the strike, however, is for more negotiations between the employer and

those strikers, respectively. those who are entitled to the participants of the strike

to represent. The employer must therefore be familiar with who?

He represents. The Government pointed out that the provisions of section 17 para. 4 (b). (c))

the law on collective bargaining follows the next sentence, which would be his

cancellation become devoid of purpose and nicotnou. In this regard, according to the Government

the proposal, submitted incomplete and confusing.



24. To jmennému the list of participants of the strike, the Government stated that the reason

the contested legislation was to enable the employer to comply with the obligation

According to section 22 para. 4 of the law on collective bargaining, i.e.. prepare

work for employees who are not on strike. At the same time has this list

be used to assess and satisfy claims under sections 22 to 24 of the Act.



25. Finally, the Government stated that in past years was considered

the ability to change certain provisions of the law on collective bargaining,

However, to avoid political or factual consensus between social

partners. Together with a draft of the new labour code, however, the Government

It also prepares the draft amendment to the Act on collective bargaining, in which

proposes a change in the contested provisions.



IV.



The diction of the affected provisions of the Act and its legislative history



26. The Constitutional Court notes that the contested parts of the proposal the provisions of § 17

the law on collective bargaining (highlighted in bold) were at the time of

design and now as follows:



"§ 17



(1) a strike in a dispute concerning the conclusion of the collective agreement is announced and

about the start of the competent trade authority,



If it agrees at least half of the employees covered by this

the contract apply to you.



(2) a strike in a dispute concerning the conclusion of the collective agreement a greater degree of

the higher Union body Announces. To initiate the strike shall decide

the trade authority



If it agrees at least half the employees concerned has

the collective agreement a greater degree of concern.



(3) the publication and launch of the solidarity strikes proceed similarly

pursuant to the preceding paragraphs.



(4) the competent authority shall notify the labor employers

at least three working days in advance



and when the strike began),



(b)) the reasons and objectives of the strike,



(c) a list of the names of the representatives of the competent) trade body who are

authorized to represent the participants of the strike.



The competent authority is obliged to keep the Union in writing to the employer

to report changes to the list referred to in point (c)).



(5) the competent authority shall submit to the employer the Union at least

one working day before the beginning of the strike the names of employees,

who are the participants in the strike.



(6) the persons referred to in section 20 (a). g), (h)), i), (j)), k) for the purposes of

the findings of the total number of employees does not include, nor does

the vote on the strike. On the outcome of the vote, the competent trade authority

Edit writing. "



27. the provisions of section 17 of the Act on collective bargaining has been approved in

the same terms in which the Federal Assembly of the Czechoslovak Government

She suggested. In the explanatory memorandum to the draft law, the Government stated, inter alia:

"The extreme means in a dispute concerning the conclusion of a collective agreement is ...

the strike and lockout; their publication, the progress and completion of the proposed

Edit in the interest of legal certainty to both employers and employees. ... A proposal from the

It is based on the principle that, in the event of a dispute concerning the conclusion of a collective

a collective agreement is to be addressed primarily in the proceedings before the

by the provider. However, if the proceedings before the mediator

the collective dispute is not resolved by the conclusion of collective agreements and

Contracting Parties request an arbitrator to resolve the dispute, may be as far

means of resolving this dispute declared a strike. Such a solution

the collective dispute cannot be considered a violation of the right to strike, but for

highlight the uniqueness and extreme resource enforcement request

employees. The proposed legislation is based on the tasks the workers ' strike

authorities, as advocates of the legitimate requirements of the employees. Therefore,

also in section 17 provides that a strike at the conclusion of the collective agreement

may declare and decide about its publication, the competent authority of the Union,

If it agrees at least half of the staff. The strike at the conclusion of the

higher collective agreement the competent higher authority announces the trade, about

the initiation of such a strike is decided by the competent authority where the Union with

It agrees at least half of the employees covered by the collective

agreement a greater degree of concern. ... To prevent distortion

the results of the voting on the venue of the strike, the proposal provides, in determining the

the necessary quorum, the employees referred to in section 20 of the proposal do not include. ... In

the interests of free speech, will employees in section 18 provides that the

employees may not be prevented from participating in the strike, nor must it be to the

participation in the strike compelled. " (see Web page

http://www.psp.cz/eknih/1990fs/tisky/t0260_01.htm, visited 2. 10.

2006).



In the.



The terms of the claimant's evidence and control active before the Constitutional Court



28. the proposal brought a group of a total of 42 members of the Chamber of Deputies

The Parliament of the United Kingdom, represented by one of them, a member of the

JUDr. Zdeněk Koudelka, Ph.d., the Constitutional Court notes that this group

members at the time of submission of the proposal authorized by the applicant, pursuant to section 64

paragraph. 1 (b). (b)) of the Act on the Constitutional Court, since the submission of the proposal

requires at least 41 members.



29. the representative of the applicant during the procedure. Zdeněk Koudelka,

Ph.d., the Constitutional Court said that ceased to be a member and a lawyer and

Whereas, therefore, is no longer in charge of the negotiations for a group of members of Parliament in this matter. In

during the proceedings, also ended the term of the Chamber of Deputies

Parliament of the Czech Republic, holding the members was composed the petitioner-

members of the group, with only some of them in elections to

The Chamber of deputies of the Parliament of the Czech Republic held on days 2. and

June 3, 2006 to become members again. The Constitutional Court in accordance with its

the existing case-law [cf. Constitutional Court, SP. zn. Pl. ÚS

42/95, published as the award No. 47, volume 5 Collections of findings and resolutions

The Constitutional Court (hereinafter referred to as "ECR") page 388, 390; announced

under Act No. 192/1996] notes that the terms of locus standi

mover-a group of MPs-in proceedings for review of the standards is to be

assessed at the time of initiation of the proceeding. From the requirement for the protection of constitutionality

Indeed, it is a request to the Constitutional Court because of general interest in the already

launched things acted, even though the claimant group members-

crumbled by part of them has lapsed and was part of the mandate of the Group of the

the mandate of the new.



30. For the opposition of the President of the Chamber of deputies of the Czech

Republic Ing. Miloslav Vlcek departing from the oral proceedings pursuant to §

44 para. 2 of the Act on the Constitutional Court held 5. October 2006 oral

the negotiations, which, however, for the Chamber of deputies of the Czech Parliament

Kingdom come only its Vice Chairman JUDr. Falmer,

The Senate of the Parliament of the Czech Republic without apology not appeared no one,

the representative of the appellant, of the oral proceedings. Vice Chairman

The Chamber of deputies of the Parliament of the United Kingdom referred to the written

remarks by President of the Chamber of deputies of the Parliament of the United Kingdom,

proposals for additional evidence did not, and has done no final proposal

on the decision.



Vi.



The constitutional conformity of the legislative process



31. Pursuant to § 68 para. 2 of the Act on the Constitutional Court, the Constitutional Court has in addition

assessment of compliance of the contested law with constitutional law to determine whether

was adopted and issued within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner. Based on the provisions of section 66 paragraph 1. 2 of the law on

The Constitutional Court, according to which the proposal is inadmissible if the constitutional

the law, which is under review, according to the draft regulation in violation, easily

before delivery to the Constitutional Court the validity of the proposal. Having said that,

that the laws issued prior to the entry into force of the Constitution (January 1,

1993) is entitled to the Constitutional Court to examine their content only

compliance with the existing constitutional order, but not the constitutionality of the procedure

their creation and compliance with regulatory competence (see also find SP. zn.

PL. ÚS 10/99, published as the award No. 150, sv. 16 Collections of decisions,

p. 115, 119; promulgated under no. 292/1999 Coll.).



32. Thus, in a particular case, the Constitutional Court checked whether Act No. 2/1991 Coll.,

to collective bargaining, was accepted and published within the limits of the then

the Federal Constitution laid down the competence and her in the prescribed manner.

The Constitutional Court will consider other amendments to the Act on collective

the negotiations, because they have not been challenged provisions of the Act

without prejudice to the.



33. Act No. 262/2006 Coll., amending certain laws in the context of

with the adoption of the labour code, with effect from 1. January 2007, inter alia,

§ 17 para. 1, § 17 para. 2, § 17 para. 4 (b). (c)) and repeals section 17 para. 5


the law on collective bargaining, i.e.. those provisions, which

proposes a group of Deputies. At the time the decision of the Constitutional Court, however, are

the impugned provisions of the Act is valid and effective and can be applied to the

legal relationships arising in the 31. in December 2006. Therefore, the conditions are not fulfilled,

for the termination of the proceeding under section 67 para. 1 of the law on the Constitutional Court. If

the Constitutional Court would have waited a few months until the contested provisions

cease to be valid, it could be legitimately criticized for that

alibisticky avoids the fulfilment of its mission the protection of constitutionality. In

the past, indeed, went to the meritornímu examination of the application for revocation

provisions of the Act in a situation where its derogation had several

days (see find SP. zn. PL. ÚS 42/03, promulgated under Act No. 280/2006 Coll.).



VII.



Reviews of the Constitutional Court



34. the task of the Constitutional Court in the case in question is to assess whether the legislation

concerning the conditions for the legality of the strikes in a dispute over a collective bargaining agreement

stands, in the abstract, in terms of the position of the constitutional order of the Czech

of the Republic. The first step must be to answer the question of whether and how

the strike in the constitutional law modified and what checks and balances that go with it for

the legislature.



35. the applicant pleads, in their article. 1 of the Constitution, according to the

which the Czech Republic is a sovereign, unified and democratic legal

State based on respect for the rights and freedoms of the person, and through the

article. 10 of the Constitution, which incorrectly quotes the texts of already invalid, points out

on the article. 8 of the International Covenant on economic, social and cultural

rights, the ILO Convention No. 87 on freedom of Association and protection of the right

to organise and ILO Convention No. 98 concerning the application of the principles of the right to organize

and to bargain collectively. The appellant argues with the provisions of article.

27 para. 4 of the Charter, according to which the right to strike is guaranteed under the conditions

laid down by law.



36. the Charter regulates the right to strike as part of economic rights,

social and cultural (chapter four of the Charter). The importance of this right,

or the power of his constitutional guarantees, but it is relativizována: the provisions

article. 27 para. 4 of the Charter expressly requires that the conditions for the enforcement of

to strike down the law, and in accordance with the provisions of article. paragraph 41. 1 of the Charter

There can be rights under the articles of the Charter, i.e. those listed. and the right to strike,

Sue only within the limits of laws which implement these provisions. Otherwise,

the text of the Charter, the legislature in establishing the limits and conditions for the enforcement of the

more specifically, the strike does. On the contrary, in respect of certain professions (to

persons in occupations that are immediately necessary for the protection

life and health, in addition, also against employees of the State administration and

local and regional authorities in the functions which the law determines) the legislature allows it,

that law has restricted the right to strike (article 44), or certain

professions (judges, prosecutors, members of the armed forces and

security forces) is the Charter does not give at all (article 27, paragraph 4

Of the Charter).



37. Similarly, in a general way (formulaic variance are not in the

If relevant) the right to strike is guaranteed even in the cited article. 8

paragraph. 1 (b). (d)) of the International Covenant on economic, social and

cultural rights: the State undertakes to ensure the right to strike for the

provided that it is exercised in accordance with the laws of the country concerned.

The provisions of article. 8 (2). 2 the Pact permits the imposition of legal restrictions

the exercise of this right to members of the armed forces or the police, or

the administrative authorities of the State.



38. In contrast, under the ILO Conventions No. 87 on freedom of Association and protection of the

the law of the right to organize and no. 98 concerning the application of the principles of law

to organize and to bargain collectively express guarantee of the right to

the strike does not resolve; According to the appellant the right to strike arises from the

the freedom of Association. Due to the explicit constitutional guarantee of rights

the strike in the Charter of the Constitutional Court, however, does not see any reason to

on the possibility of the existence of a theorized inferred the right to strike as a

the Basic Law of the right to freedom of association with others for the protection of

their economic and social interests, while at the same time these considerations

does not exclude.



39. If the applicant relies on the opinions of the International Labour Office,

and his control of the committees, the Constitutional Court notes that this

the international organization is not an International Court and its acts, respectively.

the opinion of the directors, are not a source of constitutional or other rights in

The Czech Republic and do not form part of its constitutional order or the legal

of the order. These opinions are addressed to the Governments of the Member countries of the international

Organization of work, its conventions and have the character of mezinárodněprávně

non-binding recommendations (so-called soft law). The reference basis for the constitutional

the Court in proceedings for review of the constitutionality of the law, be these opinions in any

If they cannot, and do not become it even if that wealth

contained in such sources as inspiration, the Constitutional Court or as a

basis of comparative reasoning used in the interpretation of the standards of the Czech

constitutional law.



40. in the light of the above, it is therefore necessary to the provision of article. 27 para. 4

and article. paragraph 41. 1 of the Charter to be interpreted so that the Charter right to strike in

General location recognises and guarantees. In principle, this right belongs to all

persons without distinction (with the exception of judges, prosecutors and members of the

the armed forces and security forces), and to the same extent. The law is

can limit only against persons in professions and activities listed

in the article. 44 of the Charter. Determination of the specific conditions of the exercise of this right,

or its limits then the Charter entrusts the lawmakers that enjoys

a fairly broad margin of discretion.



41. However, even here the legislature proceed arbitrarily, which means that the

the legislature must, with the exception of the above, respecting the principle of

equality and to establish the limits of the right to strike as well, in all cases,

that meet the specified conditions (article 4, paragraph 3, of the Charter). The legislature

However, it shall not proceed or unwisely. Due to the article. paragraph 41. 1 of the Charter

may not be a statutory right to strike in strict relation

of proportionality to the target that is being monitored, i.e. Regulation. do not go about

measures necessary in a democratic society, as is the case for example with the

other rights, which may be relied on directly from the Charter (see e.g. the law of the

freedom of Association pursuant to art. 20 (2). 1 and 3, of the Charter and article. paragraph 41. 1

Of the Charter, and on the other hand, or the right to freely associate with others on

the protection of their economic and social interests pursuant to art. 27 para. 1 and 3

Of the Charter and article. paragraph 41. 1 of the Charter, and on the other hand). A test of the constitutionality of the

to this effect, passes such a law, which can detect the monitor

a legitimate aim and that do so in a way that can be

think of it as a reasonable means to achieve it, although not necessarily

go to resource the best, the best, the most effective or the wisest.



42. Finally, the Legislature must conserve the essence and the meaning of the right to strike

(article 4, paragraph 4, of the Charter). For example, you cannot by law the right to strike

completely disable or restrict them to people in other professions, or

activities than that lists article. 44, or article. 27 para. 4 of the Charter.

Can't even lay down such conditions for the exercise of this right, which

would realistically not possible, so it guarantees the right to strike

become a mere illusory proclamations.



43. De lege lata is the right to strike by law regulated only in the area of

collective bargaining, the Act on collective bargaining, the

the contested provisions are included. The absence of legal provisions, the right to

the strike in other areas of industrial relations, the Constitutional Court due to the

the submitted proposal. Therefore, only the border of the States that

the provisions of article. 27 para. 4 of the Charter, it is possible to interpret the

the legislature is required to the right to strike by law, "perform". If you would be so

failed to do so, it would be possible to provide classified as unconstitutional

the omission of the legislature, or unconstitutional loophole (cf. find sp.

Zn. PL. ÚS 20/05 of 28 June. in February 2006, promulgated under Act No. 253/2006 Coll.).

However, this does not mean that extralegal right to strike was in

such a situation totally disputed; instability of such an interpretation follows from the

article. 4 (4). 4 of the Charter, according to which the provisions of the limits when in use

fundamental rights and freedoms necessary to conserve the essence and the meaning of the basic

rights. The courts should in this case, in the absence of legal provisions,

the protection of this right in its essence provide, otherwise it would have committed the

denial of Justice (the principle of the prohibition of denegationis iustitiae).

Conditions for the exercise of this right and its limits would have to on a case by

the case, to resolve the case-law; CF.. for example. the Supreme Court decision sp.

Zn. 21 Cdo 2489/2000 of 22 May 2000. January 1, 2002.



44. The contested provisions of the law on collective bargaining making

the legality of the realization of the right to strike in a dispute concerning the conclusion of a collective

the Treaty, a number of procedural conditions, the right to strike, no doubt

affect and restrict them. It is also clear that this has occurred in the form of the

The Charter prescribes, IE. by law. It remains, therefore, to assess whether the challenged

provisions a legitimate aim and if there are reasonable measures,

and not in an arbitrary or nešetřícím the nature and meaning of the right to strike.




45. It follows from the explanatory memorandum to the draft law on collective bargaining, as well as

and the observations of the legislature and the Government sent the draft, a group of MPs

can be inferred that the purpose of the contested provisions of the Act on collective

negotiation is the protection of the principle of legal certainty, the participants in the meeting of the

the conclusion of a collective agreement, and labour relations, participants

i.e.. employers and employees, interest in the Elimination of the so-called. Wild

to ensure the representativeness of the trade union strikes, authority for the

employee and that bargains collectively announces a strike as a last

resource in a dispute concerning the conclusion of a collective agreement, facilitate the process

negotiations and achieve the objective of collective bargaining so as to strike

as a last means of resolving a dispute between employers and employees

It was over as quickly as possible, and finally the protection of rights and free will

employees who do not want to take part in the strike.



46. the basic obligations of the employee in the employment relationship is personal

the performance of the agreed type of work according to the instructions of the employer. Unilateral

interruption of work is therefore unlawful breach of this obligation to the detriment of

the other side of the work contract. If the work is interrupted for employees

partially or completely within the strike (in order to protect their economic

and social interests-cf. article. 27 para. 1 and 4, of the Charter), character

the illegality of such acts, as employees of the unilateral

interruption of work shall exercise their right to strike. Even in these circumstances,

However, the interruption of work constitutes interference with the rights and protected interests

other people, not only employers, but also nestávkujících of employees and

other entities that are economically integrated with the employer or

in its activities or services in any way dependent. The strike

so, even if it is legal, may cause considerable economic and

the social damage. The goals that the contested regulation procedures and conditions

the announcement of the strike, in a dispute concerning the conclusion of a collective agreement, i.e. the tracks.

the prevention of economic and social damage, protect the rights and

the legitimate interests of other entities, their legal certainty resulting from the

concluded employment contracts and to balance the conflicting interests and rights of the parties

collective bargaining, so the Constitutional Court seems legitimate.

Furthermore, the applicant has not disputed the legitimacy of these objectives in any way.



47. If you strike a last resort means of in a dispute concerning the conclusion of a collective

the Treaty, which may cause significant and irreversible damage, it is understandable

If the law on the legality of a strike requires that agreed with her or her

otherwise further significant, more or less of the staff concerned has

the collective agreement apply to you. Indeed, the right to strike, as is apparent from its

inclusion in the context of the right to freedom of association with others for the protection of

their economic and social interests, it is the law of the collective; It would be

abuse of the right to strike, if his performance in his hand an individual

or close, to the number of insignificant group of people. In the present case

(the contested part of section 17, paragraph 2, of the law on collective bargaining)

the legislature requires the consent of at least half the employees concerned has

a collective agreement may apply, which strictly speaking is not even a requirement of most

as claimed by the appellant. Surely you can think of other resources,

as more or less to ensure representativeness and solemnity so fundamental

step in a dispute concerning the conclusion of a collective agreement-lower or higher quorum

established for consent (e.g. by a simple, three-fifths that

most of the employees, the consent of at least one third or two fifths

employees, etc.), or a different definition of the groups of employees, of which

the quorum checks (from all employees, from the present staff

etc.). The condition of the consent of at least half of all employees covered by the

It has a collective agreement may apply, however, is located near the center of the scale in

eligible options, and therefore it cannot be described as manifestly

an unreasonable and therefore unconstitutional.



48. A collective agreement is an agreement between two parties,

the employer on the one hand and the employees represented by the competent

the trade body on the other side. Trade authority, or its representatives,

bargains with the employer on the conclusion of a collective agreement and shall apply

legal means to achieve compliance, including rim-most resource-

the threat of a strike, or its implementation. It is to be a strike, as the extreme

resource, as quickly as possible, or stopped, turned to caused by

damages were as small as possible, it is desirable that the other party in such a polarized

the situation she knew who is authorized to act for the striking employees.

The condition of submission of the relevant trade union representatives list

the authority, who are authorized to represent the participants of the strike, as provided for in §

Article 17(1). 4 (b). (c)) of the law on collective bargaining in this situation

the Constitutional Court does not appear as manifestly unreasonable means to achieve

the legitimate aims of the legislation, as have been identified above. You can think of

certainly imagine that such a condition is not fixed at all, that the

the employer will have to rely on that on strike represent

the same representatives of the same trade union employees of the institution, which has not yet

Act on the conclusion of a collective agreement, and that you are duly authorised to all

capacity, including the interruption and termination of the strike. By establishing this condition

However, the legislature did not exceed the constitutional order as defined space for your

discretion.



49. Although the right to strike is by its very nature the law collective,

This does not mean that a strike may be forced to even those employees who

does not agree, and on strike for various reasons do not want to. These

employees have the right to keep them by the employer in accordance with the

contract awarded to work, for which they deserve the agreed

the reward, or other related claims (section 22 and section 24 of the Act on

collective bargaining), and if the employer do with regard to the

the ongoing strike cannot have the right to wage compensation when an obstacle to

the side of the employer. On the contrary, these claims are not striking; interrupt

as a result of the strike shall be treated as an absence of omluvená in

employment, for which the remuneration or compensation or related

claims (§ 22-24 of the Act on collective bargaining).



50. On the other hand, the employer has the right to protect their interests:

the right to take measures to minimize their damage caused by

the strike, or an obligation to take preventive measures to prevent or

at least minimizes the damages caused by employees or other persons. In order to

could the employer the necessary organizational, technical and safety

to adopt timely and effective measures (e.g. for continuous operations or in the

bulk transport of people) you must know in advance which of his employees on the

specific positions and workplaces its employment commitment

unilaterally suspended due to the strike and who does not. As well as to

could the employer to comply with their obligations under the labor relations

to nestávkujícím employees and their claims, must be able to

namely, to find out who is working and who on the contrary there is a strike.



51. In addition, the Constitutional Court did not find that a mere request submission

list of striking employees was eligible to hit so

extensively to other of their fundamental rights, specifically the right to

protection from unauthorized intrusion into private life, or to

the right to protection against unauthorized collection or other

abuse information about yourself in the meaning of article 87(1). 10, paragraph 1. 2 and 3, of the Charter of the

which result more stringent requirement on the appropriateness of such an intervention

in view of the objective pursued, constitutionally legitimate aim pursued (the appellant, moreover,

no such thing nor claimed). Indeed, between employer and employees

There is a closer relationship the employment contract, which among themselves freely

closed; because of the existence of this closer relationship, the employer is

shall be entitled to obtain an indication of which staff member for barrier work on the

their side, for example. for reasons of general interest, incapacity for work,

maternity and parental leave, or for other substantial personal obstacle

work, including, of course, the reason of the realization of the rights of

to strike, cannot meet its obligation to act personally work according to the

employment contract within the stipulated working hours [of section 35, paragraph 1, point (b).)

the labour code]; on the contrary, the employee is obliged the employer to

the obstacle of work on his part to realize and demonstrate it.



52. A condition of submission of the list of all the strikers in front of the

the start of the strike by the contested provisions of § 17 para. 5 of the law on

collective bargaining cannot, therefore, for the above reasons to rate

as obviously unreasonable and therefore unconstitutional means of protecting the rights of

employers and employees who are on strike is not taking part. It

of course does not mean that this is the most reasonable and the only solution possible.

The legislature, however, did not exceed the limits of its discretion when mutual rights and

obligations of employees and employers in the strike on the conclusion

collective agreements were outweighed by just submitting request namespace

the list. Whether he adequately in the new edit


According to law No. 264/2006 Coll., Constitutional Court cannot, at this stage of the proceedings

judge.



53. The Constitutional Court did not find that the legislature acted arbitrarily,

Since the contested provisions scope include unspecified

bodies and apply to all trade unions and employers,

without what was between them in terms of exercise of the right to strike in

contrary to the principle of equality and prohibition of discrimination distinction.



54. The Constitutional Court has finally dealt with and whether the contested provisions

do not restrict the right to strike in such a way that, without prejudice to itself

its essence and sense article. 4 (4). 4 of the Charter). He came to the conclusion that the

not. The contested provisions are possible and balanced compromise between the

the right to strike on the one hand, and the rights and protected interests

employers, nestávkujících employees and other bodies on the side of the

the second. The appellant did not submit any evidence showing that as a result of

the application of the contested provisions become a strike in a dispute concerning the conclusion of

the collective agreement virtually unattainable. On the contrary, is generally known

that in the 17 years of the validity of the contested provisions with a series of strikes in a dispute about

the conclusion of a collective agreement in the Czech Republic took place. Claim

the applicant to the effect that the contested provisions preventing employees in their

the proper exercise of the right to strike and that, in practice, these conditions lead to the

intimidation, discrimination and even the dismissal of workers who

therefore prefer to waive their right to strike, fearing possible

the consequences, she remained in the plane of the assumptions and hypotheses.

The unconstitutionality of the Act does not cause the hypothetical possibility of its abuse.

Against all the negative phenomena that may in connection with the performance of

the challenged provisions of the conditions required, there is effective

the Court of protection. An important element of protection, imanentně included in the

spolčovací freedom, indeed, represents itself the purpose of pooling the

the protection of their economic and social interests in the Trade Union,

that has effective legal and factual means to protect the rights and interests

employees, which brings together.



55. The Constitutional Court is aware of the fact that some employees in the

the notion that their name appears on the list of strikers, which

will be passed to the employers become less willing to participate in the strike.

However, this cannot be an argument against the request list. Cannot be

imagine that the power of any law could be anonymous. The strike

is always the confrontations, which is linked to the necessary degree of personal

commitment and responsibility for so serious a decision; even though it is

strike a collective expression, assumes the free and individual

the decision of each of its participants, otherwise would not take place.

It is undoubtedly a difficult decision, but it is always the case when

the application of any law.



56. after completion of the proceedings, the Constitutional Court notes that are not dictated by reasons

to cancel the provisions of § 17 para. 1 part of the sentence which reads "If

It agrees at least half of the employees covered by this agreement

concern. "§ 17 para. 2 part of the sentence which reads "if it agrees to

at least half of the employees covered by the collective agreement has a higher

the degree of concern. "§ 17 para. 4 (b). (c)) and § 17 para. 5 of the law on

collective bargaining, since these provisions in the abstract are not in

contrary to the article. 1 and article. 10 of the Constitution, with art. 4 (4). 4 and article. 27 para. 4

Of the Charter, article. 8 of the International Covenant on economic, social and

cultural rights, ILO Convention 87 on freedom of Association and protection of the

the law of the right to organise and ILO Convention 98 concerning the application of the principles

right to organise and to bargain collectively. Therefore, the proposal referred to in section 70

paragraph. 2 of the Act on the Constitutional Court rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, a decision of the plenary, the judges adopted a crisis management

Güttler, Elisabeth Wagner and Michael April.